# Rais Shekh v. State of U.P

- **Citation:** (2020) 12 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-03
- **Case number:** Criminal Appeal No. 221 of 2010
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rais-shekh-v-state-of-u-p-45437
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 323, 504, 308, 304 - Scheduled
Caste / Scheduled Tribe Act, 1989 -
Section 3 (2) (5) - Criminal appeal has been
filed against conviction U/s 323, 504, 308, 304
I.P.C. and Section 3 (2) (5) S.C/S.T. Act.

Hostile Witnesses - The effect of the hostile
witness cannot be discarded as whole - relevant
parts
are
admissible,
can
be
used
by
prosecution or the defence. (Para 23)

Relative Witnesses: - cannot be rejected only
on the ground that they are related the
deceased - Presence on spot are natural and
their statement are trustworthy, should be
preferred on the testimony of other witness,
because relative witnesses do not implicate
false person, leaving real culprit. (Para 34)

There is no illegality in the judgment passed by
the Trial court. (Para 43)

Quantum of sentences: - sentence of five
years awarded to the appellant for the said
offence is reduced to a rigorous imprisonment
of three years. (Para 54)

Appeal is partly allowed. (E-2)
List of Cases cited: -

## Text

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12 All. Rais Shekh Vs. State of U.P.
1
(2020)12ILR A1
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.12.2020

BEFORE

THE HON'BLE VIRENDRA KUMAR SRIVASTAVA, J.

Criminal Appeal No. 221 of 2010

Rais Shekh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Anand Dubey, Manish Singh, Rajesh Singh,
Shanker Lal Pandey

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code,1860 -
Sections 323, 504, 308, 304 - Scheduled
Caste / Scheduled Tribe Act, 1989 -
Section 3 (2) (5) - Criminal appeal has been
filed against conviction U/s 323, 504, 308, 304
I.P.C. and Section 3 (2) (5) S.C/S.T. Act.

Hostile Witnesses - The effect of the hostile
witness cannot be discarded as whole - relevant
parts
are
admissible,
can
be
used
by
prosecution or the defence. (Para 23)

Relative Witnesses: - cannot be rejected only
on the ground that they are related the
deceased - Presence on spot are natural and
their statement are trustworthy, should be
preferred on the testimony of other witness,
because relative witnesses do not implicate
false person, leaving real culprit. (Para 34)

There is no illegality in the judgment passed by
the Trial court. (Para 43)

Quantum of sentences: - sentence of five
years awarded to the appellant for the said
offence is reduced to a rigorous imprisonment
of three years. (Para 54)

Appeal is partly allowed. (E-2)
List of Cases cited: -

1. State through P.S. Lodhi Colony New Delhi Vs
Sanjeev Nanda 2012 Cr.L.J. 4174

2. St. of U.P. Vs Ramesh Prasad Mishra & anr. AIR
1996 SC 2766 & K. Anbazhagan Vs Superintendent of
Police & anr. AIR 2004 SC 524

3. Ramesh Vs St.of Har. (2017) 1 SCC 529

4. Masalti & ors. Vs St. of U. P., AIR 1965 SC 202

5. Mohabbat Vs St. of M.P., (2009) 13 SCC 630,

6. St. of M.P. Vs Saleem @ Chamaru, AIR 2005
SC 3996

7. Ramashraya Chakravarti Vs St. of M.P. AIR
1976 SC 392

Case Law discussed:

(Delivered by Hon'ble. Virendra Kumar
Srivastava, J.)

1. The instant criminal appeal has
been filed under Section 374 (2) of
Criminal
Procedure
Code
(hereinafter
referred as "Code") against the judgment
and order dated 4.12.2009, passed by
Additional Sessions Judge / Fast Track
Court No. 7, District Pratapgarh in S.T. No.
125 of 2005 arising out of Crime No. 410
of 2001 (State of U.P. vs. Rais Shekh),
under Sections 323, 504, 308, 304 I.P.C.
and Section 3 (2) (5) of Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred
as "S.C./S.T. Act") P.S. Kotwali Nagar,
District Pratapgarh whereby the accusedappellant
(hereinafter
referred
as
"appellant")
has
been
convicted
and
sentenced for offence under Section 304 II
I.P.C. for 5 years rigorous imprisonment
and fine of Rs. 5,000/- in default whereof,
he has to undergo for six months additional
imprisonment.
2 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The prosecution case, in brief, is that
Vinod Kumar (PW-3), S/o Ram Kumar Saroj,
R/o Devkali, District Pratapgarh, filed a
written information (Ex.Ka2) at P.S. Kotwali
Nagar, District Pratapgarh on 25.06.2001 at
about 9:30 p.m., alleging that he, Anand @
Bachha Harijan (hereinafter referred to as
deceased), Ashok Kumar (PW-9), Dinesh
(PW-6), Harikesh, Ramu and Dileep (PW-5)
were taking a cup of tea at the tea stall of
Ayub @ Bachai (PW-1), situated nearby
Rakesh Auto Service Station, Pitai Ka Purva
Purey Nursing Bhan at about 2:30 p.m.
Meanwhile, appellant-Rais Shekh, whose
electronic shop was situated at Jhoghapur,
came by bicycle, to have a cup of tea and
started to pass some sledging remarks
(majaak) on deceased which took place into a
hot talk and abusive words (gaali-galauj)
between them. It is further stated that all the
persons present at the place of occurrence,
tried to intervene but the appellant took a
bamboo stick from the hut of tea stall and
caused injuries on the head of the deceased.
Deceased was immediately carried to Civil
Hospital, Pratapgarh wherefrom he was
referred to Swarooprani Nehru Hospital,
Allahabad. It is further mentioned that the
appellant fled away from the place of
occurrence by leaving his bicycle on the spot.

3. The aforesaid information was
entered into Police G.D. Report (Ex.Ka-7)
and the First Information Report (Chik
Report) (Ex.Ka-6) was lodged as Crime
No. 410/2001, under Sections 323, 504,
308 I.P.C. and Section 3 (1) (10) S.C./S.T.
Act, by Constable Moharir Ram Bahadur
Yadav and the investigation of the case was
handed over to Dy.S.P. Sri Neeraj Kumar
Pandey (PW-10).

4. Dr. C.P. Verma (PW-8), posted as
Emergency
Medical
officer
at
Civil
Hospital,
Pratapgarh,
examined
the
deceased who was brought before him by
Ashok Kumar (PW-9), on 25.6.2001 at
about 3:00 p.m. and noted the following
injuries on his body:-

(a) lacerated wound 6.5 c.m. x
1.2 c.m. x bone deep on the left side of head
6 c.m. above the ear and bleeding was also
present.

(b) bleeding from left ear.

5. The deceased was advised for x-ray
and admitted in hospital in a serious
condition. According to this witness (PW8), all the injuries of the deceased were
fresh and caused by any blunt object.

6. During medical treatment, deceased
was referred to Swarooprani Nehru Hospital,
Allahabad where he died on 30.06.2001. The
death information report was sent to Kotwali
Police, Allahabad. The inquest of the deceased
was conducted by S.I. S.K. Mishra who after
preparing the relevant police papers, sealed the
dead body of the deceased and sent it to
District Hospital, Allahabad for post-mortem
examination.

7. Dr. R.P. Singh (PW-11), on 1.7.2001
at about 4:30 p.m., conducted the post-mortem
examination of the dead body of the deceased-
Anand @ Bachha Harijan and prepared the
post-mortem report (Ex.Ka-9) by noting the
following ante-mortem injuries on the body of
the deceased:-

(i) Surgically stitched wound size
9 inch in length semi lunar in shape, 3 inch
above left ear on the left side of the head.

(ii) Surgically stitched wound of
size 10 inch in length on the right side of
head, 3 1/2 inch above right ear on the
right side of the head.

(iii) Contusion 3 c.m. x 1 c.m.
present on the lower part of the right side
chest.
12 All. Rais Shekh Vs. State of U.P.
3

8. In addition to above, he (PW-11)
found that trachea stomy tube and urinary
catheter were also present. Both side of
temporal bones were fractured, brain was
lacerated and clotted blood was present and
bladder including intestine were empty.
According to this witness, the deceased had
died on 30.6.2001 at 10:45 a.m. at
Swarooprani Hospital, Allahabad, due to
coma as result of ante-mortem injury to
brain.

9. During investigation, on the basis
of inquest report and post-mortem report,
the death information report of deceased
was entered in the G.D. (Ex.Ka-8) on
20.7.2001 and the offence under Section
304 I.P.C. was added.

10. Dy.S.P. Neeraj Kumar Pandey, PW10 (Investigating Officer) inspected the place
of occurrence, prepared site plan (Ex.Ka-4),
took the bamboo stick (thunni) used in
causing injury, prepared recovery memo
(Ex.Ka-1), recorded the statements of the
witnesses and filed a charge-sheet (Ex.Ka-5),
under Section 323, 504, 308, 304 I.P.C. and
Section 3 (2) (5) S.C./S.T. Act, against the
appellant,
before
the
Chief
Judicial
Magistrate, Pratapgarh who after providing
the copy of relevant police papers to
appellant, committed the case for trial to
Court of Sessions, Pratapgarh as the case was
exclusively triable by Court of Sessions.

11. Appellant, his counsel and counsel
appearing for the State were heard on the
point of charge. The charges, under Section
323, 504, 308, 304 I.P.C. and Section 3 (2)
(5) S.C./S.T. Act, were framed against the
appellant to which he denied and claimed
to be tried.

12. The prosecution, in order to prove
its case, has produced Mohd. Ayub @
Bachai (PW-1), Baladeen Prajapati (PW-2),
Vinod Kumar (PW-3), Ramu Vishwakarma
(PW-4), Dileep (PW-5), Dinesh (PW-6),
Ram Lotan (PW-7), Dr. C.P. Verma (PW-8),
Ashok Kumar (PW-9), Dy.S.P. Neeraj
Kumar Pandey (PW-10) and R.P. Singh
(PW-11), wherein, PW-1 to PW-7 and PW9 are witnesses of fact whereas PW-8, PW10 and PW-11 are formal witnesses.

13. After conclusion of prosecution
witnesses, the statement of appellant was
recorded under Section 313 of the Code
wherein he, denying the prosecution evidence,
stated that he was innocent and had been
falsely implicated. He further stated that the
deceased was a motor mechanic and was
performing his duty at the time of occurrence
by using hydraulic jack but due to slip of jack,
severe head injury was caused to the deceased
whereby he died.

14. In defence, to rebut the prosecution
evidence, S.B. Shukla (DW-1), Pharmacist,
District
Hospital,
Pratapgarh,
has
been
produced by the appellant who has stated that
on 25.6.2001, at about 3:00 p.m., injured Anand
(deceased) was brought at District Hospital,
Pratapgarh for treatment by Ashok Kumar
(PW-9) and injuries of deceased had been noted
at page no. 20 of Accidental Medical Register.
Stating that injuries of accident cases is entered
in Accidental Medical Register, he proved
photo copy of medico legal injury report of
deceased (Ex.Kha.1).

15. Learned trial Court, after
conclusion of trial, convicted the appellant
for the offence under Section 304-II I.P.C.
by acquitting him for offence U/s 323, 504,
308 I.P.C. and Section 3 (2) (5) S.C./S.T.
Act, vide impugned judgment and order.

16. Aggrieved by the said judgment,
the instant appeal has been preferred.
4 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Heard Sri Shankar Lal Pandey,
learned counsel for the appellant and Sri
Dhananjai Kumar Singh, learned A.G.A.
for the State and peruse the record.

18. Learned counsel for the appellant
has submitted that the appellant is innocent
and has been falsely implicated in this case.
Learned counsel further submitted that the
deceased was a mechanic in Rakesh Auto
Service Station, he had received fatal injury
on his head due to slip of hydraulic jack
because his injury was noted in Accidental
Medical Register, maintained at District
Hospital, Pratapgarh where the deceased
was immediately carried after the accident.
Learned counsel further submitted that all
the
independent
witnesses
have
not
supported the prosecution story and PW-1
to PW-7 have been declared, by the
prosecution, as hostile. Learned counsel
further submitted that the statement of PW9 Ashok Kumar is not reliable as he is the
cousin of deceased and his presence at the
time of occurrence is not natural. Learned
counsel further submitted that the learned
trial Court, without applying its judicial
mind
and
considering
the
evidence
available on record, has illegally convicted
and sentenced the appellant vide impugned
judgment and order which is illegal, against
the
settled
principle
of
criminal
jurisprudence and is liable to be set aside.

19. Learned counsel also submitted
that though the appellant is innocent having
no criminal history, if it is found that the
appellant is guilty, a lenient view is
required to be adopted in this case in view
of the nature of offence as well as the said
offence was happened before twenty years.

20.

Per-contra,
learned A.G.A.
vehemently opposing the submission made
by learned counsel for the appellant,
submitted that the learned trial Judge has
not committed any illegality or irregularity
in the aforesaid judgment and order.
Learned A.G.A. further submitted that only
on the account that PW-1 to PW-7 have not
supported the prosecution story on some
fact, their whole evidence cannot be
brushed aside. Learned A.G.A. further
submitted
that
these
witnesses
have
supported the prosecution story on the
point of the date, time, place of occurrence
and nature of injury and other relevant
aspect of the prosecution story. Learned
A.G.A. further submitted that the presence
of PW-9 Ashok Kumar at the time of
occurrence is natural and probable. He
(PW-9) is named in the first information
report and also had carried the injured from
the place of occurrence to the hospital.
Learned counsel further submitted that the
evidence of PW-9, Ashok Kumar cannot be
treated as unreliable only on the ground
that he is relative of the deceased. Learned
A.G.A. further submitted that neither any
delay has been caused in lodging the first
information report nor in medico legal
examination. The ocular evidence is also
supported and corroborated with the
medical evidence. Learned A.G.A. further
submitted that defence story put up by the
appellant that deceased had received injury
in accident due to slip of hydraulic jack, is
wholly unreliable, as no eye witness has
been produced by the appellant to prove
this fact. Learned A.G.A. further submitted
that the prosecution has successfully
proved its case beyond reasonable doubt
against
the
appellant;
the
impugned
judgment and order is liable to be
confirmed and the instant appeal is liable to
be dismissed.

21. I have considered the rival
submission made by learned counsel for the
parties and peruse the record.
12 All. Rais Shekh Vs. State of U.P.
5

22. Admittedly, the occurrence was
happened on 25.6.2001 at about 2: 30 p.m.
and just after the occurrence the deceased
was carried to District Hospital, Pratapgarh
wherefrom he was referred to Allahabad
and died during medical treatment. Vinod
Kumar (PW-3) who lodged the first
information report, has specifically stated
that the said occurrence was happened in
his presence and after the occurrence, he
along with other person, present at the
place of occurrence, had taken away the
deceased to District Hospital, Pratapgarh
and
wherefrom
he
was
referred
to
Swarooprani Hospital, Allahabad. In first
information report (Ex.Ka.2), this fact has
been elaborately mentioned by him (PW-3).

23. So far as the submission of the
learned counsel for the appellant that all the
independent prosecution witnesses (PW-1
to
PW-7)
have
not
supported
the
prosecution story and have been declared
hostile by the prosecution whereas the
statement of Ashok Kumar (PW-9) is not
reliable as he is kith and kin of the
deceased, is concerned, it is settled
principle of law of criminal jurisprudence
that
the
statement
of
independent
witnesses, produced by the prosecution,
cannot be thrown out only on the account
that they had been declared by the
prosecution as hostile. The statement of
hostile witnesses can also be taken into
account to that extent to which it supports
the prosecution. Similarly, the evidence of
the relatives also cannot be held as
unreliable only on the ground that they are
related to the deceased, if their presence at
the time of occurrence are natural and
reliable and their statement are reliable and
trustworthy, in the facts and circumstances
of the case and if it is so alleged by the
defence, the defence has to show that why
the relative witnesses are telling a lie or
falsely implicating the accused-appellant
by leaving aside the real culprit.

24. The tendency of witnesses to
become hostile to the prosecution story, has
become
a
cancer
to
the
criminal
administration of justice. It has been seen
in most cases that the prosecution witnesses
do not prefer to support the prosecution
case because they prefer to avoid or attend
the court proceeding as well as to take
enmity with the accused and in some cases,
they do not support the prosecution case
either on the account of threat or allurement
given by the accused person. Hon'ble
Supreme Court in State through P.S.
Lodhi Colony New Delhi vs. Sanjeev
Nanda 2012 Cr.L.J. 4174 while expressing
its concern on the tendency of hostility and
value of evidence of hostile witnesses,
relying on law laid down in State of U.P.
vs. Ramesh Prasad Mishra and another
AIR 1996 SC 2766 and K. Anbazhagan
vs. Superintendent of Police and another
AIR 2004 SC 524 has held as under:-

"87. Witness turning hostile is a
major disturbing factor faced by the
criminal courts in India. Reasons are many
for the witnesses turning hostile, but of late,
we see, especially in high profile cases,
there is a regularity in the witnesses
turning hostile, either due to monetary
consideration or by other tempting offers
which undermine the entire criminal justice
system and people carry the impression
that the mighty and powerful can always
get away from the clutches of law thereby,
eroding people's faith in the system. This
court in State of U.P. v. Ramesh Mishra and
Anr. [AIR 1996 SC 2766] held that it is
equally settled law that the evidence of
hostile witness could not be totally rejected,
if spoken in favour of the prosecution or the
accused, but it can be subjected to closest
6 INDIAN LAW REPORTS ALLAHABAD SERIES
scrutiny and that portion of the evidence
which is consistent with the case of the
prosecution or defence may be accepted. In
K. Anbazhagan v. Superintendent of Police
and Anr. [AIR 2004 SC 524], this Court
held that if a court finds that in the process
the credit of the witness has not been
completely shaken, he may after reading
and considering the evidence of the witness
as a whole with due caution, accept, in the
light of the evidence on the record that part
of his testimony which it finds to be
creditworthy and act upon it. This is exactly
what was done in the instant case by both
the trial court and the High Court and they
found the accused guilty."

25. In Ramesh Vs. State of
Harayana (2017) 1 SCC 529 again
Hon'ble Supreme Court, while taking
notice the culture of compromise in
criminal cases and tendency of witnesses
turning hostile has held, as under:-

"39. We find that it is becoming a
common phenomenon, almost a regular
feature, that in criminal cases witnesses turn
hostile. There could be various reasons for
this behaviour or attitude of the witnesses. It
is possible that when the statements of such
witnesses were recorded under Section 161
of the Code of Criminal Procedure, 1973 by
the
police
during
investigation,
the
Investigating Officer forced them to make
such statements and, therefore, they resiled
therefrom while deposing in the Court and
justifiably so. However, this is no longer the
reason in most of the cases. This trend of
witnesses turning hostile is due to various
other factors. It may be fear of deposing
against the accused/delinquent or political
pressure or pressure of other family
members or other such sociological factors.
It is also possible that witnesses are
corrupted with monetary considerations.

40. In some of the judgments in
past few years, this Court has commented
upon such peculiar behaviour of witnesses
turning hostile and we would like to quote
from few such judgments. In Krishna Mochi
v. State of Bihar, this Court observed as
under:

"31. It is matter of common
experience that in recent times there has
been sharp decline of ethical values in
public life even in developed countries
much less developing one, like ours, where
the ratio of decline is higher. Even in
ordinary cases, witnesses are not inclined
to depose or their evidence is not found to
be credible by courts for manifold reasons.
One of the reasons may be that they do not
have courage to depose against an accused
because of threats to their life, more so
when the offenders are habitual criminals
or high-ups in the Government or close to
powers, which may be political, economic
or other powers including muscle power."

41.
Likewise,
in
Zahira
Habibullah v. State of Gujarat, this Court
highlighted the problem with following
observations: "40. Witnesses, as Bentham
said, are the eyes and ears of justice.
Hence, the importance and primacy of the
quality of trial process. If the witness
himself is incapacitated from acting as eyes
and ears of justice, the trial gets putrefied
and paralysed and it no longer can
constitute a fair trial. The incapacitation
may be due to several factors like the
witness being not in a position for reasons
beyond control, to speak the truth in the
court or due to negligence or ignorance or
some corrupt collusion. Time has become
ripe to act on account of numerous
experiences faced by the court on account
of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and
monetary considerations at the instance of
those in power, their henchmen and
12 All. Rais Shekh Vs. State of U.P.
7
hirelings, political clouts and patronage
and innumerable other corrupt practices
ingeniously adopted to smother and stifle
truth and realities coming out to surface.
Broader public and social interest require
that the victims of the crime who are not
ordinarily parties to prosecution and the
interests of State representing by their
presenting agencies do not suffer... there
comes the need for protecting the witnesses.
Time has come when serious and undiluted
thoughts are to be bestowed for protecting
witnesses so that ultimate truth presented
before the Court and justice triumphs and
that the trial is not reduced to mockery.

41. The State has a definite role
to play in protecting the witnesses, to start
with at least in sensitive cases involving
those in power, who has political patronage
and could wield muscle and money power,
to avert trial getting tainted and derailed
and truth becoming a casualty. As a
protector of its citizens it has to ensure that
during a trial in Court the witness could
safely depose truth without any fear of
being haunted by those against whom he
had
deposed.
Every
State
has
a
constitutional obligation and duty to
protect the life and liberty of its citizens.
That is the fundamental requirement for
observance of the rule of law. There cannot
be any deviation from this requirement
because of any extraneous factors like,
caste, creed, religion, political belief or
ideology. Every State is supposed to know
these fundamental requirements and this
needs no retaliation. We can only say this
with regard to the criticism levelled against
the State of Gujarat. Some legislative
enactments
like
the
Terrorist
and
Disruptive Activities (Prevention) Act, 1987
(in short the "TADA Act") have taken note
of the reluctance shown by witnesses to
depose against people with muscle power,
money power or political power which has
become the order of the day. If ultimately
truth is to be arrived at, the eyes and ears
of justice have to be protected so that the
interests of justice do not get incapacitated
in the sense of making the proceedings
before Courts mere mock trials as are
usually seen in movies."

42. Likewise, in Sakshi v. Union
of India, the menace of witnesses turning
hostile
was again described
in
the
following words: "32. The mere sight of the
accused may induce an element of extreme
fear in the mind of the victim or the
witnesses or can put them in a state of
shock. In such a situation he or she may not
be able to give full details of the incident
which may result in miscarriage of justice.
Therefore,
a
screen
or
some
such
arrangement can be made where the victim
or witnesses do not have to undergo the
trauma of seeing the body or the face of the
accused. Often the questions put in crossexamination are purposely designed to
embarrass or confuse the victims of rape
and child abuse. The object is that out of
the feeling of shame or embarrassment, the
victim may not speak out or give details of
certain acts committed by the accused. It
will, therefore, be better if the questions to
be put by the accused in cross-examination
are given in writing to the Presiding Officer
of the Court, who may put the same to the
victim or witnesses in a language which is
not embarrassing. There can hardly be any
objection to the other suggestion given by
the petitioner that whenever a child or
victim of rape is required to give testimony,
sufficient breaks should be given as and
when required. The provisions of subsection (2) of section 327 Cr.P.C. should
also apply in inquiry or trial of offences
under Section 354 and 377 IPC."

43.
In
State
v.
Sanjeev
Nanda[10], the Court felt constrained in
reiterating the growing disturbing trend:
8 INDIAN LAW REPORTS ALLAHABAD SERIES

"99. Witness turning hostile is a
major disturbing factor faced by the
criminal courts in India. Reasons are many
for the witnesses turning hostile, but of late,
we see, especially in high profile cases,
there is a regularity in the witnesses
turning hostile, either due to monetary
consideration or by other tempting offers
which undermine the entire criminal justice
system and people carry the impression
that the mighty and powerful can always
get away from the clutches of law thereby,
eroding people's faith in the system.

100. This court in State of U.P. v.
Ramesh Mishra and Anr. [AIR 1996 SC
2766] held that it is equally settled law that
the evidence of hostile witness could not be
totally rejected, if spoken in favour of the
prosecution or the accused, but it can be
subjected to closest scrutiny and that
portion of the evidence which is consistent
with the case of the prosecution or defence
may be accepted. In K. Anbazhagan v.
Superintendent of Police and Anr., (AIR
2004 SC 524), this Court held that if a
court finds that in the process the credit of
the witness has not been completely shaken,
he may after reading and considering the
evidence of the witness as a whole with due
caution, accept, in the light of the evidence
on the record that part of his testimony
which it finds to be creditworthy and act
upon it. This is exactly what was done in
the instant case by both the trial court and
the High Court and they found the accused
guilty.

101. We cannot, however, close
our eyes to the disturbing fact in the instant
case where even the injured witness, who
was present on the spot, turned hostile.
This Court in Sidhartha Vashisht @ Manu
Sharma v. State (NCT of Delhi), (2010) 6
SCC 1 and in Zahira Habibullah Shaikh v.
State of Gujarat, AIR 2006 SC 1367, had
highlighted the glaring defects in the
system like non-recording of the statements
correctly by the police and the retraction of
the statements by the prosecution witness
due to intimidation, inducement and other
methods of manipulation. Courts, however,
cannot shut their eyes to the reality. If a
witness becomes hostile to subvert the
judicial process, the Courts shall not stand
as a mute spectator and every effort should
be made to bring home the truth. Criminal
judicial system cannot be overturned by
those gullible witnesses who act under
pressure,
inducement
or
intimidation.
Further, Section 193 of the IPC imposes
punishment for giving false evidence but is
seldom invoked."

44. On the analysis of various
cases, following reasons can be discerned
which make witnesses retracting their
statements before the Court and turning
hostile:

"(i) Threat/intimidation.

(ii)
Inducement
by
various
means.

(iii) Use of muscle and money
power by the accused.

(iv) Use of Stock Witnesses.

(v) Protracted Trials.

(vi)
Hassles
faced
by
the
witnesses during investigation and trial.

(vii) Non-existence of any clearcut legislation to check hostility of
witness."

45. Threat and intimidation has
been one of the major causes for the
hostility of witnesses. Bentham said:
"witnesses are the eyes and ears of
justice". When the witnesses are not able
to depose correctly in the court of law, it
results in low rate of conviction and many
times even hardened criminals escape the
conviction. It shakes public confidence in
the criminal justice delivery system. It is
for this reason there has been a lot of
discussion on witness protection and from
12 All. Rais Shekh Vs. State of U.P.
9
various quarters demand is made for the
State to play a definite role in coming out
with witness protection programme, at
least in sensitive cases involving those in
power, who have political patronage and
could wield muscle and money power, to
avert trial getting tainted and derailed and
truth becoming a casualty. A stern and
emphatic message to this effect was given
in Zahira Habibullah's case as well."

(Emphasis laid down)

26. Now coming to this case, PW-1
Mohd. Ayub @ Bachai has stated that his
house and tea stall are situated toward the
North to Rakesh Shukla Auto Service
Station Telco Company Pitai Ka Purva. He
further stated that on 25.6.2001 at about
2:30 p.m., he was present at his tea stall
where
Anand
@
Bachha
Harijan
(deceased), Ashok (PW-9) and Baladin
(PW-2) were present along with other
person and they had asked him to serve
them a cup of tea. He further stated that as
they were having tea, an unknown person
came there with his bicycle and by standing
his bicycle, sit down beside the deceased.
He further stated that after some time, hot
altercation took place between them which
resulted gathering and the person present
on the spot, tried to intervene and pacified
both of them. He further stated that
thereafter Anand
@
Bachha
Harijan
(deceased) had moved towards courtyard
(Sehan), situated in front of Rakesh Shukla
Auto Service Station, but the said unknown
person withdraw the bamboo stick (thuni)
from his hut and started beating the
deceased. He further stated that so many
persons gathered at the place of occurence
and thereafter the said unknown person, by
leaving his cycle at the place of occurence,
fled away. According to this witness, since
the deceased had received severe injuries,
he was carried to District Hospital but
succumbed to his injuries during the
treatment. He further stated that during the
investigation, the Investigating Officer had
taken into his custody, the bamboo stick
(weapons of offence) and had also taken his
signature on a plain paper (Ex.Ka.1). This
witness was declared as hostile by the
prosecution but in cross-examination, he
again stated that he did not know the
person who caused the said offence.

27. Baladin (PW-2) although has
stated
in
his
examination
that
no
occurrence was happened before him but
admitted that after the occurrence, he had
heard that the deceased Anand @ Bachha
Harijan had received severe injury on
25.6.2001 at about 2:30 p.m. whereby he
became unconscious. This witness had also
not supported the prosecution story and
was declared hostile by the prosecution.

28. Vinod Kumar (PW-3), like PW-1,
has stated that the said occurrence was
happened in his presence on 25.6.2001 at
2:30 p.m. wherein Anand @ Bachha
Harijan was beaten by one unknown person
to whom he did not know. This witness was
also declared hostile by the prosecution as
he denied the identity of the accused.

29. Ramu Vishwakarma (PW-4) has
stated that at the time of occurrence, he was
doing his duty, inside Rakesh Shukla Auto
Service Station, Telco Company and he did
not know who had caused injury to the
deceased. This witness was also declared
hostile by the prosecution.

30. Dileep (PW-5) has stated that he
was not present at the place of occurrence
as he had gone to his house to take lunch
and when he returned, he had seen that the
deceased was badly injured and was being
10 INDIAN LAW REPORTS ALLAHABAD SERIES
carried to the hospital. He further stated
that he had also accompanied the deceased
to
the
hospital;
and
deceased
was
unconscious due to his head injury. He
further stated that due to severe injury, the
doctors of District Hospital, Pratapgarh had
referred him to Swarooprani Hospital,
Allahabad and he had also gone to
Allahabad where, after five days during the
treatment, deceased had died. He further
stated that after some days, he got an
information that the deceased was washing
the vehicle in Auto Service Station where
he had received severe injuries as he fell
down due to intoxication. This witness was
also declared hostile as he did not
supported the prosecution story.

31. Dinesh (PW-6) has stated that at
the time of occurrence, he was sleeping at
his house and as he got information, he
rushed to the place of occurrence and saw
that the deceased was being carried to
District Hospital. This witness further
stated that he had heard that there was
quarrel between the deceased Anand @
Bachha Harijan and appellant on a trival
issue and meanwhile, the appellant had
caused injury to the deceased by bamboo
stick (thuni).

32. Ram Lotan (PW-7) has also stated
that he was not present at the time of
occurrence and he had heard that the
deceased was beaten by the appellant Rais
Shekh. This witness was also declared
hostile by the prosecution.

33. Thus, none of the prosecution
witnesses, who has been declared by the
prosecution as hostile, have disputed the
date, time, manner and factum of the
occurrence. Mohd. Ayub @ Bachai (PW-1),
Vinod Kumar (PW-3), Dileep (PW-5) have
clearly stated that the fatal injury was
caused by bamboo to the deceased Anand
@ Bachai before him on 25.6.2001 at 2:30
p.m. at the said place of occurrence. They
have been declared hostile, only because
they denied the identity of accused. Trial
Court has not rejected the whole evidence
of these hostile prosecution. It has taken
their statement into consideration to that
extent to which it support the prosecution
story. In my view, in view of the law laid
down by Hon'ble Supreme Court in
Sanjeev Nanda (supra), Ramesh Prasad
Mishra (supra) and K. Anbazhagan (supra),
trial court has not committed any error.

34. Now coming to the next
submission of the learned counsel for the
appellant that evidence of Ashok Kumar
(PW-9) can not be taken into consideration
as he is relative of deceased. It is settled
principle of law that testimony of relative
witnesses, if their presence on spot are
natural and their statement are trustworthy,
should be preferred on the testimony of
other witness, because relative witnesses do
not implicate false person, leaving real
culprit.

35. It is very pertinent to quote at this
very stage the law laid down in Masalti
and others vs. State of U. P., AIR 1965
SC 202, wherein Court said as under :

"...............But it would, we think,
be unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. Often
enough, where factions prevail in villages
and murders are committed as a result of
enmity between such factions, criminal
Courts have to deal with evidence of a
partisan type. The mechanical rejection of
such evidence on the sole ground that it is
partisan would invariably lead to failure of
12 All. Rais Shekh Vs. State of U.P.
11
justice. No hard and fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct.........."

36. Similarly, in Mohabbat vs. State
of M.P., (2009) 13 SCC 630, Court held as
under :

"...........Relationship is not a
factor to affect credibility of a witness. It is
more often than not a relation would not
conceal actual culprit and make allegations
against an innocent person. Foundation
has to be laid if plea of false implication is
made. In such cases, the Court has to adopt
a careful approach and analyse evidence to
find out whether it is cogent and credible."

37. Ashok Kumar (PW-9) has stated
that at the time of occurrence, at about 2:30
p.m., he, deceased, Ramu (PW-4), Dinesh
(PW-6), Dileep (PW-6) and Harikesh were
having tea at tea stall of Bachai (PW-1). He
further stated that meanwhile appellantRais Shekh came there and started to have
tea. He has further stated that after some
time, appellant Rais Shekh began to pass
dirty jokes with the deceased Anand @
Bachha Harijan and on objection raised by
him, appellant abused and quarreled with
him. He further stated that he, Harikesh,
Dinesh (PW-6), Ramu (PW-4), Bachai
(PW-1) tried to intervene but the appellant
caused injury on the head of the deceased
by a bamboo (thunni) fixed at the tea stall.
He further stated that he along with other
person carried the deceased to the hospital
by jeep but the doctor had referred him to
S.R.N Hospital, Allahabad where he was
admitted for treatment. He (PW-9) further
stated that at the time of occurrence, he and
deceased were employed at Rakesh Auto
Service Station where he and deceased
were engaged in washing the vehicles. He
again stated that at the time of occurrence,
he was having tea at the place of
occurrence and the deceased Anand was
also sitting there. He, in his crossexamination, again stated that meanwhile
the appellant-Rais came there by his
bicycle and sit beside the deceased. This
witness in his cross-examination admitting
that he had not lodged the report, has
further stated that he was present at the
place of occurrence and saw the whole
occurrence.

38. From perusal of injury report
(Ex.Ka.2), it transpires that the deceased
was carried by Ashok Kumar (PW-9) in an
injured condition before Dr. C.P. Verma
(PW-8), District Hospital, Pratapgarh, for
treatment and medical examination. In
addition to above, the presence of Ashok
Kumar (PW-9) has also been shown in FIR
along with other witnesses. Thus, the
presence of this witness as well as other
witnesses named in the first information
report is not disputed. This witness has
been thoroughly cross examined by the
defence but nothing has come out from his
examination whereby his testimony can be
disputed. Thus, merely on the ground that
he is relative of deceased, his testimony
cannot be doubted.

39. Further, the occurrence was
happened on 25.6.2001 at about 2:30 p.m
and the first information report was lodged
on the same day at 9:30 p.m. In the
meantime, the deceased was carried by the
prosecution witnesses to the hospital,
situated at Pratapgarh and thereafter
Allahabad for medical treatment. Thus,
there is neither delay in lodging the F.I.R.
nor in medical examination.
12 INDIAN LAW REPORTS ALLAHABAD SERIES

40. So far as the argument of learned
counsel for the appellant that deceased had
died due to head injury received in
accident, caused due to slip of hydraulic
jack, is concerned, appellant has not
produced any eye witness in his defence
who had seen that deceased had received
such injury in any accident as submitted by
the learned counsel of the appellant. Learned
counsel in support of his submission has
placed reliance only on testimony of S.B.
Shukla (DW-1). Vinod Kumar (PW-3),
informant, who was declared hostile by the
prosecution has clearly stated that the said
injury was caused to deceased by bamboo
(thuni). He, in cross-examination by defence
counsel, has rejected the suggestion of
defence counsel that said injury was
received by deceased in accident caused due
to slip of hydraulic jack. Similarly, Ashok
Kumar (PW-9) has also rejected the
aforesaid suggestion, put to him by defence.
Dr. C.P. Verma (PW-8) has clearly said that
injury on the head of deceased was caused
by blunt object. In cross-examination,
neither any question nor any suggestion was
put to this witness that injury, present on the
head of deceased at the time of examination,
was caused in accident. S.B. Shukla (DW-1)
although has stated that injuries of deceased
were noted in Accidental Medical Register
but in cross-examination he admitted that he
was not medico legal expert and could not
tell whether the case, wherein he was
deposing, was accidental or not. In my view,
where the defence had failed to put any
question or suggestion to the doctor (PW-8)
who had examined the deceased, as to
whether or not injury to deceased was
caused in accident, the testimony of defence
witness S.B. Shukla (DW-1) cannot affect
the prosecution story and trial Court has
rightly disbelieved the defence of the
appellant. Thus, the submission of learned
counsel has no force.

41.